Di Giannantonio by his tutor Tucker v Di Giannantonio

1. [1]

   WARD P: I agree with the comprehensive reasons of Griffiths AJA and with the orders his Honour proposes.

2. [2]

   FREE JA: I agree with Griffiths AJA.

3. [3]

   GRIFFITHS AJA:

4. [4]

   This appeal is from the judgment and orders of Williams J in Maria Di Giannantonio v Michael Di Giannantonio [2025] NSWSC 346 (primary judgment or PJ). The first and second appellants, Mr Michael Di Giannantonio and Mamro Pty Ltd (some names are abbreviated for convenience and without disrespect), initially sought leave to appeal “out of an abundance of caution” when there was a dispute between the parties as to whether the appeal involved a “right amounting to or of the value of $100,000 or more”: Supreme Court Act 1970 (NSW), s 101(2)(r)(ii). However, this dispute was overtaken by the amended notice of appeal that Michael and Mamro sought leave to file and serve in their notice of motion dated 12 December 2025, which raised eleven new grounds of appeal. In submissions dated 27 January 2026 which were filed pursuant to McHugh JA’s orders on 15 December 2025, the respondent, Mrs Maria Di Giannantonio (who is Michael’s mother), conceded that the expanded scope of the appeal under the amended notice of appeal meant that “the monetary limit is exceeded and no leave to appeal is required”. That concession was well made.

5. [5]

   Michael and Mamro subsequently added a further ground of appeal in an amended notice of appeal dated 30 January 2026. It is common ground that Michael and Mamro require leave to rely on proposed grounds 6-8, which all relate to the question of whether or not Michael had legal capacity at the time of the trial. It may be noted that Michael had a tutor for the purposes of the appeal proceedings but not at the trial even though the matter was raised by the primary judge. It will be necessary later in these reasons to elaborate on these events.

6. [6]

   The proceedings arise from matters that transpired over the course of ten years following the death of Michael’s father, Mr Michele Di Giannantonio on 7 September 2009. He was survived by his wife, Maria and by his four children, Daniela, Paula, Adriana and the first appellant, Michael.

7. [7]

   Maria was the sole beneficiary of Michele’s estate under his last Will dated 11 July 2007. At the time of his death, Michele’s estate included a half share in a property at Annandale, a half share in a property at Leichhardt, shares in Finewest Holdings Pty Ltd and MTP Marble & Granite Pty Ltd, as well as two apartments in Rome. Michele’s interest in the family home in Haberfield passed to Maria as the surviving joint tenant by right of survivorship.

8. [8]

   Shortly after Maria inherited those assets, Michael caused her to transfer to Mamro for no consideration the whole of her interest in the Annandale and Leichhardt properties. Michael is the sole director and shareholder of Mamro.

9. [9]

   The shares Maria inherited in Finewest and MTP Marble & Granite soon became worthless after Michael established a new company, MTP Marble Granite Sandstone Pty Ltd, which took over the marble business conducted by those other companies. Moreover, while Maria retained the Haberfield property, she granted a mortgage over that property to secure a loan taken out by Mamro to fund the purchase of a quarry at Maroota, New South Wales.

10. [10]

    These events all occurred whilst Michael and his then partner, Ms Melanie Hunter, resided with Maria at the Haberfield property.

11. [11]

    In September 2016, Michael and Melanie moved out of the Haberfield property after falling into dispute with Maria about the scope of authority conferred on him in relation to the Rome apartments under a power of attorney that Maria had executed at Michael’s request in 2015.

12. [12]

    In May 2018, following the breakdown of the relationship between Michael and Melanie, Maria agreed to allow Michael to return to live with her at the Haberfield property on the condition that Michael enter into a deed. After extensive negotiations between the parties’ respective lawyers, a deed was signed by Michael and Mamro on or around 22 August 2018 and later, by Maria, on 12 October 2018 (the 2018 Deed). It provided inter alia for:

(A) The trial and the primary judgment summarised

1. [13]

   In 2022, Maria commenced proceedings seeking specific performance of the 2018 Deed and an order under s 95 of the Succession Act 2006 (NSW) approving the release of Michael’s right to apply for a family provision order. Maria ultimately succeeded in obtaining this and other relief.

2. [14]

   Before summarising the primary judgment, it is necessary to say something at a little length about the conduct of the trial, with particular reference to the issue of Michael’s legal capacity and the circumstances in which he came to represent both himself and Mamro commencing on the first day of the six day trial.

3. [15]

   From at least October 2021 (when Michael lodged a caveat over the Haberfield property) until shortly before the trial commenced on 26 August 2024, the appellants were jointly represented by Clayton Utz: see PJ [20]. At no time during this period was there any suggestion that Michael required a tutor. Following Clayton Utz ceasing to act on 11 July 2024 (ie approximately six weeks before the commencement of the trial), a notice of appointment of solicitor was filed on 21 August 2024 appointing Mr Peter McCrohon of CharterLaw Pty Ltd as the appellants’ solicitor, “for the purpose only of an application to adjourn the hearing of the proceedings”.

4. [16]

   That application was heard by the primary judge on Friday 23 August 2024, shortly before the trial was scheduled to commence the following Monday. The appellants were represented by Mr Ipp of counsel. Amongst the evidence in support of the adjournment application, the appellants sought to tender an interim report dated 22 August 2024 by a literary and numeracy teacher (Ms Fran Davidson). The proposed tender was rejected by the primary judge, essentially because of its late service, it being incomplete and the prejudice to Maria not being able to test its contents.

5. [17]

   The primary judge ultimately rejected the adjournment application for various reasons, including the absence of any evidence that Michael had attempted to retain new solicitors to replace Clayton Utz for the trial.

6. [18]

   Importantly, in light of Mr Ipp’s claim that Michael had limited cognitive capacity, on 23 August 2024 her Honour proactively granted leave to the appellants to make an application for the appointment of a tutor for Michael. Her Honour added that there was nothing preventing Maria from making such an application. Her Honour emphasised that she had not formed any view about the matter, and that if such an application were made and acceded to, she would explore the possibility of the substantive hearing proceeding, with any necessary adjustments, such as delaying the start of the trial.

7. [19]

   On the afternoon of 23 August 2024, the appellants’ solicitors (CharterLaw) emailed the primary judge’s associate confirming that, consistently with the limits of their retainer, they would cease to act. Critically, this email then referred to the primary judge having raised the possibility of an application to appoint a tutor for Michael. The email stated: “We have sought instructions in this regard and no instructions have been given to make such an application”.

8. [20]

   Accordingly, the hearing commenced on 26 August 2024 with Michael representing both himself and Mamro.

9. [21]

   This background shows that there was no material before the primary judge which was capable of supporting the conclusion that Michael was “under legal incapacity”. The primary judge, out of an abundance of caution, raised the matter with Michael’s then legal representatives and gave them an opportunity, on instructions from Michael, to make such an application. But Michael, through his solicitors, expressly disavowed it and elected with proceeding to the hearing.

10. [22]

    As Maria points out, this background also shows that none of the lawyers representing Michael in the period preceding the trial had sufficient concerns about his mental capacity to make an application under r 7.18 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). This deserves weight because of the professional duties of lawyers in respect of their clients’ capacity to commence and carry on proceedings: see Vishniakov v Lay (2019) 58 VR 375; [2019] VSC 403 at [30(c)-(e)], and the cases there cited.

11. [23]

    It is plain that her Honour was, and remained throughout the proceedings, acutely alive to any potential concerns that may have called for the appointment of a tutor.

12. [24]

    In addition to the matters outlined above, the primary judge said at PJ [20] that although Michael claimed to have a disability in reading, writing and comprehension, there was no evidence to support this claim. Moreover, although given an opportunity to adduce supporting expert evidence regarding these claimed disabilities, her Honour also noted that no such further evidence was forthcoming.

13. [25]

    The primary judge recorded at PJ [19]-[20] her personal observations of Michael’s competency in conducting the hearing. She was well placed to make those observations over the six days of the trial. Her Honour referred to his cross-examination of multiple witnesses “using written notes and sustaining lines of questioning [which] did not suggest to me that he was suffering from any relevant disability”, the fact that no such disability was relied upon as part of the alleged special disadvantage Michael claimed to have suffered to set aside the 2018 Deed as unconscionable and that no disability was mentioned in his lengthy affidavit (prepared when he was represented by Clayton Utz), and Michael failing to take up any of the opportunities afforded to him to adduce evidence of his alleged disability.

14. [26]

    I will return below to explain why I respectfully agree with her Honour’s observations, having regard in particular to that which is revealed by the transcripts of the lengthy trial.

15. [27]

    The primary judgment is comprehensive and thoroughly reasoned: it totals 389 paragraphs.

16. [28]

    It is convenient to summarise her Honour’s reasons for upholding Maria’s claims by reference to the following ten topics as identified by the primary judge at PJ [330]. Not all the topics arise on the appeal.

17. [29]

    In her statement of claim filed 28 January 2022, Maria pleaded that the parties entered into the 2018 Deed on 12 October 2018. The primary judge noted at PJ [312] that, in their defence, Michael and Mamro denied that the 2018 Deed was enforceable. This was on the basis that, prior to Maria executing the document on 12 October 2018, her solicitors advised the solicitors for Michael and Mamro on 23 August 2018 that they were “unable to accept” the document (which had been executed by Michael and Mamro on or around 22 August 2018) and that “the matter needs to be resolved” (see [7] of the amended defence).

18. [30]

    The primary judge noted at PJ [313] that Maria denied that her solicitors’ response meant that the document was unenforceable. In her amended reply filed 15 November 2022, Maria joined issue with the defendants’ amended defence and said further in reply to [7] of that document that, on or following execution of the 2018 Deed, the parties manifested their mutual assent to it such that it was binding and enforceable. Alternatively, Maria claimed that the parties affirmed the 2018 Deed by their conduct and that, in any event, the defendants were also precluded by promissory or conventional estoppel from alleging that the 2018 Deed was unenforceable and void.

19. [31]

    The primary judge noted further at PJ [332] that Maria contended that her solicitor’s response dated 23 August 2018 did not constitute a rejection by her of an offer by Michael and Mamro to enter into a deed on the terms of the fifth draft which they had executed, because the objection related only to the form of the document.

20. [32]

    The primary judge observed that the parties’ respective positions concerning whether the 2018 Deed was binding and enforceable were expressed in terms of offer and acceptance, a contractual analysis which her Honour said failed to grapple with the fact that the document is a deed: PJ [333].

21. [33]

    This led to her Honour’s ultimate conclusion that Michael and Mamro had delivered the 2018 Deed in escrow on 23 August 2018, with the condition that it would come into effect only when it was executed by Maria. This reasoning is reflected at PJ [336]:

22. [34]

    Her Honour’s finding that there was an escrow condition is the subject of grounds 9-13 of the amended notice of appeal.

23. [35]

    It should also be noted, however, that the primary judge proceeded to find that, even if the 2018 Deed was not effective as a deed binding all three parties from 12 October 2018, the parties manifested their mutual assent to the terms of the 2018 Deed by their conduct in signing it and their conduct thereafter (see at PJ [338]). Thus there is an alternative basis for the primary judge’s finding that the 2018 Deed was binding and enforceable.

24. [36]

    The primary judge at PJ [343]-[345] rejected Michael and Mamro’s claims that the 2018 Deed should be set aside on the basis of unconscionability or undue influence by Maria’s daughters. It is unnecessary to take this topic any further because the grounds of appeal do not challenge those findings.

25. [37]

    The primary judge explained at some length at PJ [347]-[353] why this claim was rejected. It is unnecessary to descend into any detail about her Honour’s reasoning because the finding is not challenged on appeal.

26. [38]

    At [354], the primary judge concluded it was unnecessary to determine these issues because the 2018 Deed was effective as a deed and was not unenforceable or liable to be set aside because of unconscionability, undue influence or the Contracts Review Act 1980 (NSW). These findings are not impugned on appeal apart from the finding that the 2018 Deed was binding and enforceable as a deed.

27. [39]

    Her Honour explained at PJ [356] that even if she had not held that the 2018 Deed was valid and enforceable, she would have rejected Michael’s proprietary estoppel claim for reasons which are set out at PJ [357]-[369]. It is unnecessary to summarise those reasons because there is no relevant ground of appeal.

28. [40]

    Having found that the 2018 Deed was valid and enforceable, her Honour proceeded to make a declaratory order to that effect as sought by Maria. This issue is tied to the first topic.

29. [41]

    Her Honour concluded at PJ [373] that Maria was entitled to an order under s 74MA of the Real Property Act 1900 (NSW) requiring Michael to withdraw his caveat against the title to the Haberfield property. Nothing more needs to be said about this topic because it is not challenged on appeal.

30. [42]

    The primary judge concluded that she should make an order for specific performance. This issue is tied to the first topic above.

31. [43]

    Section 95 of the Succession Act provides:

32. [44]

    Clause 8 of the 2018 Deed contained a release of Michael’s right to apply for family provision. It provides:

33. [45]

    The primary judge approved the release contained in cl 8(c) of the 2018 Deed: see at PJ [387] and [389(6)]. Her Honour found at PJ [385] that:

34. [46]

    Michael and Mamro contend that the primary judge erred in approving the release. They submit that the Court could not have been satisfied that the release was fair and reasonable (as required by s 95(4)(c) of the Succession Act) in circumstances where there was no evidence before the Court about the value of the Haberfield property, the marble business, the Maroota Quarry property (and the operations undertaken there), or the 50% interest in and the mortgage over the Leichhardt property. Michael and Mamro also submit that the Court could not have found that the release was fair and reasonable because it could not assess the benefit or detriment occasioned to Michael by the release absent findings of fact about the liabilities of Michele’s estate and the full financial position of Maria and Michael.

35. [47]

    The primary judge concluded at PJ [388] that Michael and Mamro should pay Maria’s costs of the proceedings on an indemnity basis, having regard to cl 5.1(c) of the 2018 Deed, which provided:

36. [48]

    Michael and Mamro challenge this finding by ground 5 of the amended notice of appeal.

(B) The appeal

1. [49]

   It is regrettably necessary to describe at some length the rather tortured procedural history of the appeal proceeding before addressing the appellants’ application to adduce further evidence and the 17 grounds of appeal, including those for which leave to appeal is required.

2. [50]

   On 10 July 2025, Michael and Mamro filed a summons seeking leave to appeal.

3. [51]

   On 11 July 2025, a consent by Ms Rosemary Tucker to act as Michael’s tutor was filed.

4. [52]

   On 18 August 2025, the Registrar made case management orders.

5. [53]

   On 8 October 2025, in circumstances where the appellants were in default, the Registrar made amended case management orders.

6. [54]

   On 14 November 2025, the Registrar listed the matter for further directions on 19 November 2025.

7. [55]

   On 19 November 2025, the Registrar made further case management orders which reflected the appellants’ ongoing default.

8. [56]

   On 5 December 2025, Maria filed a notice of motion (5 December Motion) seeking the following orders:

9. [57]

   On 8 December 2025, the Registrar made case management orders and listed the 5 December Motion for hearing on 15 December 2025. The summons seeking leave to appeal was listed for further directions on 2 February 2026.

10. [58]

    On or around 10-11 December 2025, the appellants attempted to file a notice of motion before the primary judge in the proceedings numbered 2022/00025305 seeking a stay of the final orders dated 11 April 2025 relating to costs. In support of that proposed motion, the appellants sought to rely upon Ms Davidson’s interim report (see at [16] above), two reports by a psychologist, Mr Andrew Wong, and an affidavit affirmed by Mr Paveen Kumar on 4 July 2025.

11. [59]

    On 11 December 2025, Williams J’s associate informed the parties that, in Chambers, the primary judge refused leave to file the proposed motion and supporting affidavits on the grounds that final orders had been made on 11 April 2025 and the Court lacked jurisdiction, particularly in circumstances where the appellants had commenced proceedings in the Court of Appeal. The primary judge’s ruling is challenged by ground 17 of the amended notice of appeal.

12. [60]

    On 12 December 2025, Michael and Mamro filed a notice of motion (12 December Motion) seeking the following orders:

13. [61]

    On 15 December 2025, McHugh JA made the following orders in relation to the 5 December Motion and the 12 December Motion:

14. [62]

    On 2 February 2026, the Registrar granted the appellants leave to amend the draft notice of appeal by adding proposed grounds 9 to 16, but otherwise stood over the 12 December Motion to the concurrent hearing in this Court on 13 April 2026.

15. [63]

    On 20 March 2026, Michael and Mamro filed a notice of motion seeking the following relevant orders (20 March Motion):

16. [64]

    On 23 March 2026 and 30 March 2026, the Registrar made additional case management orders relating to the concurrent hearing listed for 13 April 2026, including the hearing of the 5 December Motion, 12 December Motion and 20 March Motion.

17. [65]

    At the outset of the hearing of the appeal, Mr Auld, who appeared for both Michael and Mamro, conceded that insofar as there was anything extant in the 12 December Motion, it should be dismissed. Mr Livingston SC, who appeared together with Mr Cooper for Maria, confirmed that the 5 December Motion was no longer pressed and should be dismissed. An order to that effect was made on the day.

18. [66]

    Mr Auld also sought leave to amend the 20 March Motion so as to seek leave to adduce the following further evidence on the appeal (in addition to the three affidavits previously identified in the 20 March Motion, namely the two affidavits affirmed by Ms Fran Davidson on 28 January 2026 and 18 March 2026 respectively, as well as the affidavit of Ms Demi Georgievski affirmed on 16 March 2026):

19. [67]

    The Court directed the appellants to provide an amended 20 March Motion by 2pm on 13 April 2026, being the scheduled time for the hearing of the appeal to resume after the luncheon adjournment.

20. [68]

    Following the luncheon adjournment, Mr Auld handed up a proposed amended 20 March Motion. After confirming that the appellants pressed ground 17 of the amended notice of motion (which relates to the primary judge’s refusal to allow the appellants to file the proposed notice of motion and supporting affidavits seeking to stay the Court’s final orders dated 11 April 2025 relating to costs), the Court invited Mr Auld to identify the relevant material in the Blue Book relating to this ground. He was unable to do so. Mr Auld acknowledged that the 20 March Motion needed to be further amended so as to rely upon additional parts of Ms Tucker’s affidavit, namely [20] and page 88 of the annexures. The Court revoked leave to file the notice of motion handed up and directed that a copy of the proposed amended 20 March Motion be provided by 5pm on 13 April 2026.

21. [69]

    The following day, on 14 April 2026, the appellants filed an amended 20 March Motion which differed from the 20 March Motion handed up the previous day in that leave was now also sought to rely on [20] of Ms Tucker’s affidavit and pages 95-97 of the annexures thereto (in addition to [4]-[7] and [22] of the affidavit and page 88 of the annexures). The amended 20 March Motion sought to rely upon Ms Demi Georgievski’s affidavit affirmed 16 March 2026, but did not include any reference to an earlier affidavit affirmed by her on 22 January 2026. Although Mr Auld said during the course of the hearing that Ms Georgievski’s earlier affidavit was also relied upon, this appears to be an error because there is no reference to that affidavit in the amended 20 March Motion.

22. [70]

    It is convenient first to address the application to adduce further evidence as identified in the amended 20 March Motion filed 14 April 2026 before addressing whether leave should be granted to rely on proposed grounds 6-8.

23. [71]

    Most of the further evidence the subject of the amended 20 March Motion relates to the issue whether Michael lacked legal capacity at the time of the trial. This issue is raised by proposed grounds 6-8. Before addressing each of the relevant affidavits, it is desirable to outline the relevant legal principles relating to both legal capacity and adducing further evidence on an appeal.

24. [72]

    Rule 7.14 of the UCPR provides that:

25. [73]

    A “person of legal incapacity” is defined in r 7.13 of the UCPR as “a person who is incapable of managing his or her affairs”.

26. [74]

    It is convenient to summarise some of the relevant legal principles concerning legal incapacity. Many of those principles were helpfully set out recently by Kirk JA (Mitchelmore JA and Griffiths AJA agreeing) in Mahmoud v Ghahreman [2026] NSWCA 52 at [23]-[31] which may be summarised as follows:

27. [75]

    It is also convenient to outline the relevant principles which guide the Court’s power to grant leave for further evidence to be adduced on appeal.

28. [76]

    Section 75A(8) of the Supreme Court Act provides that “where the appeal is from a judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds”.

29. [77]

    In Akins v National Australia Bank (1994) 34 NSWLR 155 at 159, Clarke JA (Sheller JA agreeing) stated that:

30. [78]

    Although these conditions are “general precepts, rather than essential conditions to be applied as rules in every case ... they reflect longstanding discretionary constraints associated with the power to admit further evidence on ‘special grounds’”: French v Bremner [2020] NSWCA 299 at [7] (Leeming JA and Emmett AJA).

31. [79]

    As to the first condition in Akins, the further evidence now sought to be adduced relating to the issue of Michael’s legal capacity is of a kind which could have been obtained with reasonable diligence prior to the hearing below. It could have been obtained by Michael and/or Mamro prior to the trial had they, or their lawyers then representing them, wished to make an application for a tutor to be appointed. No cogent reason has been given as to why this evidence could not have been adduced at trial, especially in circumstances where the primary judge expressly granted Michael an opportunity to do so and his then solicitor confirmed that, having sought instructions on the matter, no such instructions had been given (see at [18]-[19] above).

32. [80]

    It may also be inferred that although Michael’s then-solicitor (CharterLaw) approached Ms Davidson in August 2024 to provide an expert report on Michael’s reading, writing and comprehension skills, this was done on the express basis of obtaining evidence to support an application to adjourn the hearing of the trial. No issue was evidently raised regarding Michael’s legal capacity more generally. It may reasonably be inferred that neither Clayton Utz (who acted for Michael from at least October 2021 up until 11 July 2024), nor CharterLaw, had any concern regarding Michael’s fundamental legal capacity.

33. [81]

    It appears that it was only after final orders had been made by the primary judge on 11 April 2025 that the new solicitor representing Michael (Mr Carlisle from Carlisle Attorneys) expressed concerns regarding Michael’s legal capacity. Thus, it was on 6 July 2025 that Mr Carlisle sent an initial letter of instruction to Mr Wong seeking a psychological assessment of Michael’s capacity to understand the nature of the legal proceedings, retain relevant information and make informed decisions about litigious matters relating to his capacity to run the trial which commenced the previous year on 26 August 2024 and his current capacity to conduct a legal trial. It was in these circumstances that, on or around 10-11 December 2025, an attempt was made to file a notice of motion with the primary judge seeking a stay of her Honour’s final orders relating to costs, supported by the affidavits of Mr Kumar, Ms Davidson’s interim report and two expert reports of Mr Wong dated 18 November 2025 and 3 December 2025. As noted at [59] above, the primary judge refused leave for this material to be filed.

34. [82]

    Turning to the second condition in Akins, it is necessary to address each of the affidavits the subject of the amended 20 March Motion filed 14 April 2026 in explaining why I consider that none is such, either individually or collectively, as to give rise to a high degree of probability that, if now admitted into evidence, the Court would conclude that Michael lacked legal capacity at the time of the trial.

35. [83]

    Ms Davidson is an adult literacy and numeracy teacher. She holds a Bachelor of Business Administration (Marketing) from the University of South Australia and a Graduate Diploma (Teaching Adults Literacy & Numeracy) from the University of Technology Sydney.

36. [84]

    Ms Davidson’s interim report is attached to a letter dated 22 August 2024. The interim report was provided after Michael met Ms Davidson for two and a half hours on 9 August 2024 and then for a further hour long meeting on 16 August 2024. In the covering letter dated 22 August 2024 from Ms Davidson to the appellants’ then solicitors (CharterLaw), Ms Davidson stated that she was not in a position to provide a full report before 20 September 2024 and that more time was “needed to analyse and cross-reference the assessment results”. The attached report was provided by Ms Davidson on the express basis that it was only “an interim step”.

37. [85]

    The interim nature of the report is sufficient of itself to indicate why it is of very limited probative value in establishing that Michael lacked legal capacity at the relevant time, to which may be added the following additional observations:

38. [86]

    For the following reasons, I also do not consider that Ms Davidson’s two subsequent expert reports, if admitted into evidence, would support a finding that Michael lacked legal capacity at the time of the trial.

39. [87]

    Ms Davidson’s expert report dated 27 January 2026 is in response to the original letter of instructions dated 22 August 2024 from CharterLaw, as well as updated instructions dated 8 January 2026 from Carlisle Attorneys then acting for Michael’s tutor. The updated instructions requested Ms Davidson to give her opinion on the following three matters:

40. [88]

    The expert report is divided broadly into two parts. Sections 1-8 address such matters as background, instructions, supporting documents, the Expert Code of Conduct and Ms Davidson’s qualifications and background. Sections 9-15 contain Ms Davidson’s opinions and supporting material.

41. [89]

    It is convenient to set out Ms Davidson’s opinions in the final section of this expert report (without alteration):

42. [90]

    Ms Davidson’s affidavit affirmed 18 March 2026 attaches another expert report by her, which is also dated 18 March 2026. Ms Davidson noted at [2.1] of that report that she had been commissioned by Carlisle Attorneys on 19 December 2025 to provide the report for the purposes of the proceedings in this Court. Ms Davidson referred to both her interim report and her earlier report dated 27 January 2026. She said that she had received two letters of instruction concerning her latest report. The first chronologically is a letter dated 25 November 2025 from Carlisle Attorneys which stated that its clients “seek to commission you for the purposes of completing your final report”. She was also asked to review the Court Book and express her opinion on the following two matters:

43. [91]

    The second letter of instruction chronologically is an email dated 19 December 2025 in which Carlisle Attorneys asked Ms Davidson to provide an invoice for the completion of her final report.

44. [92]

    The expert report dated 18 March 2026 totals 219 pages, the vast bulk of which is annexures.

45. [93]

    Ms Davidson’s findings and conclusions are set out in sections 13 and 14 of this report. Ms Davidson also helpfully provided a pithy summary of her opinions in the following two paragraphs of the Executive Summary to the report (emphasis added):

46. [94]

    I would not grant Michael and Mamro leave to rely on either of these reports by Ms Davidson. As to the first, it is plain that it could have been obtained and adduced at the trial. Indeed, it is significant that the first letter of instruction dated 22 August 2024 to which the report relates predates the commencement of the trial by several days. Moreover, I am not persuaded that there is a high degree of probability that, if the report had been available to support the appointment of a tutor, such an application would have succeeded. The report is not only incomplete on its face (see [15.2(h)] of the report, which is set out at [89] above) but it focuses on only some aspects of the issue of legal incapacity, particularly reading and comprehension. There are also important qualifications or reservations expressed in the report (see [15.2(f)] set out at [89] above) which affect its weight. Furthermore, the report does not address other material which suggests that Michael did not lack legal capacity, including the material underpinning the primary judge’s observations at PJ [19] and [20]. Finally, there is the important fact that Michael and Mamro were given every opportunity by the primary judge to apply for a tutor to be appointed and chose not to do so.

47. [95]

    Ms Davidson’s second report is also of limited probative value having regard to the candid qualifications expressed by Ms Davidson in the extracts from the Executive Summary (set out at [93] above). Moreover, I am far from persuaded that the report would be sufficient of itself to produce a different outcome regarding Michael’s legal capacity at the relevant time. As is the case with Ms Davidson’s first report, the second report focusses only on selected aspects of the issue of legal capacity and it fails to address material which indicates that Michael did not lack legal capacity, including the material underpinning the primary judge’s observations at PJ [19] and [20].

48. [96]

    Mr Wong holds both a Bachelor of Arts-Psychology and a Bachelor of Laws, as well as a Graduate Diploma of Legal Practice and a Master of Clinical Psychology. He has been a registered psychologist since 2015 and is a Fellow of the College of Clinical Psychologists and Fellow of the College of Forensic Psychologists.

49. [97]

    The appellants seek to rely upon Mr Wong’s expert report dated 3 December 2025, which is attached to his affidavit affirmed 4 December 2025. For completeness, Mr Wong’s interim psychological report dated 18 November 2025, which is annexed to an affidavit affirmed by Mr Wong on 21 November 2025, is not included in the amended 20 March Motion.

50. [98]

    It is evident from Mr Wong’s report dated 3 December 2025 that it was prepared for the purposes of what he describes as a “leave application on 8 December 2025 before the Supreme Court”. Mr Wong stated that he had received an earlier letter of instruction from Mr Carlisle on 6 July 2025 (ie a few days before the summons seeking leave to appeal was filed) and that he had been asked to assess both Michael’s mental health and cognitive function in relation to his capacity to run the legal trial which commenced on 26 August 2024, as well as his current capacity to conduct a legal trial. Mr Wong stated in his report that he had met with Michael on several occasions in July and August 2025.

51. [99]

    At [8] of his report, Mr Wong said that Mr Carlisle had asked him on 27 October 2025 to “await further instructions before undertaking any further work and completing my report”. He then said that on 13 November 2025, he received a further letter of instruction from Mr Carlisle, the four volumes of the Court Book from the trial and transcripts for the six day trial.

52. [100]

    Mr Wong explained the circumstances surrounding his provision of an interim report dated 18 November 2025 which he understood was to be used by Michael in a court appearance on 19 November 2025. Mr Wong then described how he had been told by Mr Carlisle on 27 November 2025 that he wanted him to take “extra time as opposed to rushing to completion”. He added, however, that the following day he received multiple phone calls from Michael’s office saying that Mr Carlisle asked for Mr Wong to complete his report by 1 December 2025. Furthermore, on 3 December 2025, Mr Wong said that he received an email from Michael’s secretary stating that there was an urgent need to have the final report by the following day because Michael was at risk of having his case thrown out of court. Self-evidently, considerable pressure was applied to Mr Wong to complete his report after a series of stops and starts dating back to early July 2025.

53. [101]

    In his final report, Mr Wong said that he had interviewed Ms Demi Georgievski who had known Michael for 15 years. She had worked for him as an employee for a few years and remained a friend although she had resigned from her employment with him. Mr Wong described Ms Georgievski’s statements to him regarding Michael’s capacity to concentrate, his comprehension of written language and that although he could draft basic email responses he “typically delegated any email responses to his secretaries and staff members”. She told Mr Wong that Michael could not solve problems without assistance, such as repairing tools and equipment in the factory. Mr Wong also recorded that Ms Georgievski reported that Michael was “very impulsive” and “often fired her but would call her back apologising”, that he had a short temper and would become easily frustrated, particularly when he did not understand something. She then told him that Michael “often lied to customers”. She added, however, that Michael was very good at sales and was proficient in selling marble products to customers.

54. [102]

    Mr Wong also summarised his interview with Mr Brett Wilson, who had known Michael for three years and was currently a contractor with Michael’s marble business.

55. [103]

    Mr Wong described his review of records from NSW Ambulance relating to an attendance upon Michael in the Supreme Court on 29 August 2024. Mr Wong noted that the paramedics had recorded that Michael was “alert and orientated” and had “no basic competency and capacity issues in relation to responding to ambulance workers”. If anything, this material is inconsistent with the proposition that Michael lacked capacity at this time.

56. [104]

    The appellants highlight the following opinions expressed by Mr Wong in his 3 December 2025 report:

57. [105]

    In his report, Mr Wong summarised the trial transcripts which he described as providing material regarding Michael’s “behaviours in every day of the hearing”. In fact, however, Mr Wong summarised only four of the six day trial (27 August, 28 August, 29 August and 2 September 2024). His summaries of those full-day transcripts are notably brief and are highly selective. They generally relate to some difficulties manifested by Michael as a litigant in person conducting a complex and lengthy trial, which is not unexpected or unusual for a self-represented person. Furthermore, Mr Wong makes no reference to the many other parts of the transcripts which support the primary judge’s observations at PJ [19]-[20].

58. [106]

    In my respectful view, Mr Wong did not provide a balanced summary or assessment of the transcripts. Later in these reasons for judgment, I will explain why I consider that the transcripts, fairly and objectively assessed, support the primary judge’s observations at PJ [19] and [20] and do not demonstrate that Michael lacked legal capacity at the time of the trial (see below at [120]ff).

59. [107]

    Returning to Mr Wong’s report, Mr Wong’s ultimate opinion was that Michael suffered from F70 Mild Intellectual Disability at the time of the assessment. Mr Wong opined as follows at [83] of his report:

60. [108]

    I am not persuaded that Mr Wong’s opinion is sufficient, of itself, or in combination with the other proposed further evidence, to present a high probability that Michael lacked legal capacity at the time of the trial. Much of what Mr Wong says relates to his assessment of Michael’s capacity to represent himself at the trial and whether he did so proficiently. As was noted in Mahmoud at [30], the relevant issue is not whether a litigant in person, such as Michael, has the ability to represent himself or herself well. Yet, that appears to be the focus of Mr Wong’s assessment. Merely because Michael may not have represented himself and Mamro as well as a qualified legal representative or another litigant in person does not mean that he lacked full legal capacity.

61. [109]

    Even if Mr Wong’s report and assessment is read more generously, I am not persuaded that it provides a balanced and comprehensive assessment of Michael’s legal capacity. That assessment is not supported by an objective review of the transcripts of the trial. The report warrants very little probative weight.

62. [110]

    In her affidavit affirmed 16 March 2026, Ms Georgievski stated that she had assisted Michael over various periods in the last 12 years. She said that when she commenced assisting him, she would help him to type emails and do file management. She also described how she helped Michael by accessing the business bank accounts. She said that, in her observations, Michael could speak Italian and English fluently and that he used voice programs on his smart mobile telephone. Ms Georgievski also stated that Michael typically failed to attend to his daily scheduled tasks and appointments unless reminded to do so. She said that he is also untruthful. Ms Georgievski deposed as follows:

63. [111]

    I consider that Ms Georgievski’s affidavit has very little probative value in terms of supporting the contention that Michael was, at the time of the trial, a person under legal incapacity. The affidavit suggests that Michael struggles with arithmetic, writing, email correspondence and concentrating for extended periods of time, but this does not demonstrate that, at the time of the trial, Michael was wholly incapable of conducting legal proceedings as a litigant in person who was also representing Mamro. I am far from persuaded that if Ms Georgievski’s affidavit was admitted, there is a high probability that it would, viewed individually or collectively with the other proposed further evidence, establish legal incapacity at the time of the trial.

64. [112]

    On 4 July 2025, Mr Kumar affirmed a short affidavit which was filed on 12 December 2025. Mr Kumar said that he was employed as a stonemason at the Maroota Quarry and had known Michael for about five years. He gave evidence of his attendance at the Supreme Court on 29 August 2024 and his personal observations of Michael experiencing a nosebleed. He deposed that he heard Michael decline the recommendation from a paramedic that Michael be admitted to hospital.

65. [113]

    It is evident from the transcript that Michael’s nosebleed occurred during the luncheon adjournment on 29 August 2024. When the hearing resumed at approximately 2pm on that day, Michael told the Court that he had suffered a nosebleed but that he did not want the hearing adjourned. He added, however, that he did not feel well and felt “quite dizzy”. In those circumstances, the primary judge adjourned the hearing for approximately an hour with a view to revisiting the situation. When the hearing resumed at 3pm, Michael was not present. Her Honour adjourned the hearing until 9:30am on Monday 2 September 2024 (ie after the weekend break).

66. [114]

    When the hearing resumed on Monday morning, Michael appeared and apologised to the Court. He did not complain of any ongoing issue concerning the nosebleed. Rather, he proceeded to participate in the hearing in the usual way. This included him applying to rely on three additional lay affidavits and continuing to cross-examine one of his sisters.

67. [115]

    Mr Kumar’s affidavit has no probative weight at all regarding Michael’s legal capacity at the time of the trial.

68. [116]

    As noted above, Ms Tucker is Michael’s tutor. The appellants sought to rely on some parts of her affidavit affirmed 22 January 2026 which were referred to in the appellants’ written submissions. These parts of Ms Tucker’s evidence relate not so much to Michael’s legal incapacity, but to other issues in the proceeding, including ground 17 (to which [20] of the affidavit and page 88 of the annexures related) and the complaint of procedural unfairness raised by grounds 12-13 (to which [22] of the affidavit and pages 95-97 of the annexures relate). I consider that these parts of the affidavit should be admitted into evidence in relation to those matters.

69. [117]

    Paragraphs 4 to 7 of Ms Tucker’s affidavit should also be admitted into evidence on the basis that they are referred to at [20] of the appellants’ summary of argument filed 29 August 2025 as supporting the contention that the appellants had complied with the final orders concerning discharging the mortgage on the Haberfield property and removing the caveat. Otherwise, these paragraphs have little or no relevance to any issue in the appeal.

70. [118]

    Returning to the third condition in Akins relating to the credibility of the evidence, Maria contends that where the further evidence comprises testimonial statements from witnesses who have not been cross-examined, the Court ought not to make a finding as to its credibility one way or another. That contention should be accepted.

71. [119]

    I do not consider that the prejudice of this further evidence to Maria is overcome by now affording her an opportunity to cross-examine relevant witnesses or adduce additional evidence in response. The proceedings have a long history, having commenced in early 2022 and involving a six day trial. Maria is now in her late 80s and ought not to be subjected to the pressure and anxiety of a resumed hearing. All the more so in circumstances where the appellants’ application to adduce further evidence was made belatedly and without any explanation for the delay.

72. [120]

    The transcripts of the six day trial total 427 pages. They constitute a valuable source of information bearing upon Michael’s legal capacity having regard to the relevant principles outlined in cases such as Mahmoud. Some of the material indicates that, at particular times, Michael had difficulties with his memory, his understanding of legal concepts and his ability to analyse and digest complex documents. This would be the case with many litigants in person participating in such a trial. On balance, however, the transcripts strongly support the primary judge’s observations at PJ [19]-[20], which are to the effect that Michael’s cross-examinations were “lengthy, robust and persistent”, the manner of his cross-examining involved using written notes and sustaining lines of questioning, and there was no evidence that Michael had difficulties which rose to the level of “a disability” in reading, writing and comprehension.

73. [121]

    Without attempting to be exhaustive (in view of the length of the transcripts), I will highlight some examples of how the transcripts are inconsistent with the belated claim that Michael lacked legal capacity at the time of the trial.

74. [122]

    The transcripts record numerous occasions when the primary judge went out of her way to make adjustments for the fact that Michael was a litigant in person and had to confront the challenges invariably presented to such a litigant who lacks legal qualifications or relevant experience. This is reflected in the following examples:

75. [123]

    For the following reasons, I reject any submission that Michael’s acknowledgement should be diminished because of Michael’s capacity to “mask” his difficulties with reading, writing and comprehension:

76. [124]

    While it may be accepted that Michael has some difficulties in reading and writing as well as comprehension, I consider that, viewing the transcripts of the six day trial as a whole, those disadvantages do not rise to the level of legal incapacity.

77. [125]

    Accordingly, for all these reasons, I would not grant leave to adduce the further evidence identified in the amended 20 March Motion filed on 14 April 2026, with the solitary exception of the material identified in paragraph 3(g) thereof relating to parts of Ms Tucker’s evidence.

78. [126]

    Michael and Mamro argue that during the hearing of the proceedings below, Michael was a “person of legal incapacity” for the purposes of r 7.14 of the UCPR, such that he was not capable of carrying on the proceedings except by a tutor and that the primary judge erred in permitting the trial to continue without appointing a tutor for Michael. These contentions are raised by proposed grounds 6-8 of the amended notice of appeal.

79. [127]

    For the following reasons, I would refuse leave for the appellants to rely upon proposed grounds 6-8 of the amended notice of appeal dated 30 January 2026.

80. [128]

    First, and foremost, these proposed grounds lack sufficient prospects. This is particularly so in circumstances where the proposed grounds were said to be supported by the appellants by the further evidence relating to Michael’s capacity, evidence which has been rejected. This essentially leaves the appellants only with the transcripts as relevant material bearing upon the issue of Michael’s legal capacity. As is evident from my analysis of the transcripts of the trial and applying the relevant legal principles relating to legal capacity, the transcripts do not indicate that Michael lacked legal capacity.

81. [129]

    Secondly, in considering whether or not to permit the appellants to rely upon proposed grounds 6-8, a significant factor which is not in their favour is the history of the proceeding and the fact that no application was made either prior to, or during the conduct of the trial, to have a tutor appointed for Michael. The transcript of the hearing before the primary judge on 23 August 2024 demonstrates that her Honour expressly put to Michael’s then counsel the issue of capacity and the fact that he was not making an application to appoint a tutor. Her Honour was nevertheless open to hearing such an application and indeed, proactively granted leave for such an application to be made prior to the hearing.

82. [130]

    On the afternoon of 23 August 2024, Michael’s solicitors wrote to the associate to the primary judge regarding the issue of the appointment of a tutor for Michael:

83. [131]

    It is undisputable that Michael, having been given the opportunity to do so, chose not to instruct his solicitors to make an application for a tutor. Significantly, this occurred at a time when he was legally represented, albeit this was a limited retainer. Thus little, if any, allowance needs to be made on the hypothesis that Michael lacked legal capacity on 23 August 2024. His then solicitors had their own professional responsibility in relation to the matter, even allowing for their limited retainer.

84. [132]

    The primary judge cannot be said to have erred in permitting the hearing to continue in circumstances where the issue of whether Michael lacked capacity and therefore needed a tutor was squarely raised at the hearing and no such application was made.

85. [133]

    Thirdly, the proposed grounds of appeal on the legal capacity issue raise an entirely new factual issue that was not explored or tested in the proceedings below. Granting leave to Michael and Mamro to add these grounds would prejudice Maria in circumstances where she has not had the opportunity to test any relevant evidence in the proceedings below or within the confines of the appeal proceedings. Adjourning the appeal in order to provide Maria the opportunity to test and respond to this evidence would result in further undue delay and expense and cause unfairness to Maria.

86. [134]

    For all these reasons, I would not permit the appellants to rely on proposed grounds 6-8.

87. [135]

    The remaining grounds of appeal may be grouped by issue and summarised as follows:

    1. (1)

       The release issue: The primary judge erred in granting the release under s 95 of the Succession Act (grounds 1-4). In the event that Michael and Mamro succeeded, it was further submitted that the costs order made below was in error (ground 5).

    2. (2)

       The so-called “surprise rule” and procedural fairness issue: The primary judge erred by finding that the 2018 Deed was delivered by Michael in escrow without that issue being raised by the parties and without inviting submissions from the parties (grounds 9-13).

    3. (3)

       The mutual assent issue: The primary judge erred in finding that the parties were bound by the 2018 Deed on the basis that they had manifested their mutual assent to its terms (grounds 14-16).

    4. (4)

       The stay application issue: The primary judge erred in refusing leave to file a notice of motion seeking a stay of the enforcement of part of the final orders made (ground 17).

88. [136]

    It is convenient to address the remaining grounds of appeal by these groups of issues.

89. [137]

    To succeed in appealing against the primary judge’s exercise of the discretion under s 95 of the Succession Act on the basis that proper consideration was not given to the matters in s 95(4), Michael and Mamro must establish error under the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40: see Robinson v Robinson (2020) 102 NSWLR 1; [2020] NSWCA 4 at [109] and [160] (Ward JA, Meagher and Gleeson JJA agreeing). They need to demonstrate that the primary judge erred by acting upon a wrong principle, allowing irrelevant or extraneous matters to guide or affect the decision, mistaking the facts, or failing to take into account some material consideration.

90. [138]

    No such error has been demonstrated.

91. [139]

    I do not accept the appellants’ submission that the primary judge could not have been satisfied that the release was fair and reasonable because there was no proper evidence at trial of the following matters:

92. [140]

    The appellants also complain that the primary judge did not make findings on matters such as the liabilities of Michele’s estate, Maria’s full financial position and Michael’s financial position, including at the time of Michele’s death, the date the 2018 Deed was executed or the time of hearing.

93. [141]

    There is a fundamental difficulty with the appellants’ complaints. They are predicated on the proposition that, in determining whether a release (or perhaps more accurately having regard to the terms of s 95(4)(c), the provisions of any agreement to make a release) is fair and reasonable, the Court must embark upon a detailed and reasoned examination of the value of assets which are likely to form part of the estate, the value of the benefit that the releasor is obtaining, and the financial position of interested parties in the estate. This proposition is inconsistent with Robinson. There, Ward JA (Meagher and Gleeson JJA agreeing) rejected the proposition that “there could be no proper exercise of the discretion to approve a release without an oral hearing or without the publication of written reasons addressing each of the separate s 95(4) matters”. Her Honour noted that the proposition is “not supported by either authority or the practice adopted generally in these matters (and would impose an intolerable burden on the resources of the court)”: at [159].

94. [142]

    Ward JA added at [163]-[164] that:

95. [143]

    In the present case, the primary judge made an appropriate evaluative assessment that the terms of the 2018 Deed were fair and reasonable. This assessment is reflected in the primary judge’s reasoning at [384] that:

96. [144]

    The primary judge was not required by s 95(4)(c) of the Succession Act to engage in a detailed mathematical analysis of whether the benefit obtained by the releasor was on par with the benefit that might be obtained by other potential claimants on the estate.

97. [145]

    Moreover, contrary to Michael and Mamro’s contention, her Honour’s finding that the benefit obtained by Michael from Maria significantly exceeded $1,575,000 (PJ at [382]) was not in error but involved the drawing of reasonable inferences from the following matters:

98. [146]

    It is not as though there was absolutely no evidence regarding the value of the Leichhardt property. The primary judge was aware at PJ [137] that the value of a half-share of that property at the time probate was granted for Michele’s estate was $550,000. Further relevant evidence was the email dated 16 February 2011 from Michael’s then solicitor who referred to an updated valuation of the Leichardt property in the amount of $1.2 million. It was open to the primary judge to give some weight to this evidence and to draw reasonable inferences from it.

99. [147]

    As to the complaint that there was no evidence of the amount of any debt secured by the mortgage on the Leichhardt property, I accept Maria’s submission that this was a matter within Michael’s control and he failed to produce any relevant evidence.

100. [148]

     I also accept Maria’s submission that the absence of any evidence of the value of the Maroota Quarry property and business has no significance because these matters did not form part of Michael’s early inheritance as described in cl 8(a) of the 2018 Deed.

101. [149]

     As to the evidence relating to the value of the Haberfield property, the primary judge noted at PJ [383] that it was valued at $3.1 million in December 2009. A valuation report obtained by Westpac in March 2014 stated that the market value of the Haberfield property at that time was $3,150,000. Thus there was some evidentiary material from which the primary judge could draw reasonable inferences.

102. [150]

     Finally, it is important to have regard to the way in which the appellants’ case was conducted below. As Gummow ACJ, Kirby, Hayne and Heydon JJ observed in Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 at [120]:

103. [151]

     It is notable that Michael and Mamro did not argue at the trial that there was no or inadequate evidence of the value of any of the relevant assets or liabilities. Michael and Mamro should not be permitted now to challenge the primary judge’s exercise of the discretion under s 95 of the Succession Act having regard to the way in which the case was conducted below.

104. [152]

     In any event, Michael and Mamro have not demonstrated that, notwithstanding the substantial benefits that have flowed to them including from the property that would otherwise form part of Maria’s estate, Michael would in the absence of a release have good prospects of succeeding in a claim for a family provision order in the future. This is an additional reason why there is no substance to the complaint that the primary judge did not have a proper basis to conclude that the provisions of the agreement to make the release were fair and reasonable.

105. [153]

     Grounds 1-4 are rejected.

106. [154]

     Michael and Mamro contend that the primary judge erred in finding that the 2018 Deed was delivered by Michael in escrow. The crux of Michael and Mamro’s argument is that the issue of whether the 2018 Deed was delivered in escrow was not pleaded by the parties, such that it was not open to the primary judge to make that finding and that, in doing so, they were denied procedural fairness.

107. [155]

     This contention fails properly to characterise the way in which the issue was pleaded at trial. In her statement of claim filed 28 January 2022, Maria alleged that the parties entered into a wholly written deed. That was a clear allegation that the 2018 Deed was entered into and enforceable as a deed. Michael and Mamro were on notice of that case. In their further amended defence, Michael and Mamro denied that the 2018 Deed was enforceable in light of the circumstances of its execution. In her amended reply responding to this new defence, Maria raised three different additional and/or alternative bases for its binding force. None of these alternative bases advanced by Maria which support the binding nature of the 2018 Deed detract from Maria’s original allegation that the parties entered into a binding deed on 12 October 2018. In her reply, Maria also specifically pleaded that Michael and Mamro “execut[ed] and deliver[ed] the Deed to Maria on or about 22 August 2018” and that Maria “execut[ed] and deliver[ed] the Deed on 12 October 2018”.

108. [156]

     It is also relevant to note what the primary judge said at the commencement of the hearing about this matter when her Honour was summarising, largely for the assistance of Michael and Mamro, the key issues arising from the pleadings:

109. [157]

     Even if it is accepted that the specific language of “delivery in escrow” was not used in the pleadings or in the primary judge’s summary of the key issues, when regard is had to the fact that Maria specifically pleaded that a binding deed was created on 12 October 2018 when she executed the document which Michael had delivered to her on or about 23 August 2018, it was within the scope of the factual issues that Michael’s delivery of the deed to Maria amounted to delivery in escrow. There was no procedural unfairness in the primary judge making that finding.

110. [158]

     Michael and Mamro also submit that the 2018 Deed was incomplete and therefore cannot form an escrow, relying upon the objections raised by Maria’s solicitor in email correspondence with Michael’s solicitor. However, as the primary judge held, the objections raised by Maria’s solicitors only concerned the form of the 2018 Deed, not the fact that it was incomplete. Unlike the draft deed considered in Fisher v Westpac Banking Corporation (1993) 43 FCR 385, which was held to be incomplete on account of the fact that it had blanks which were required to be filled in, the 2018 Deed was capable of coming into operation as soon as the escrow condition that Maria execute the 2018 Deed was satisfied.

111. [159]

     It is further argued by Michael and Mamro that signing, sealing and delivery of a deed merely gives rise to a rebuttable presumption that there was an intention to deliver the deed in escrow, which can rebutted by considering all the circumstances of its execution (citing Lewski v Australian Securities & Investments Commission (No 2) (2017) 352 ALR 64; [2017] FCAFC 171 at [84]). Lewski stands for the proposition that the intention of the parties is the decisive factor in determining the operative date of a deed. The intention of the parties is to be established not only by reference to the actual date of the deed, which forms a rebuttable presumption as to the operative date of the deed, but also by reference to other evidence of intention that can be discerned from the circumstances.

112. [160]

     In Wardley Australia Ltd v McPharlin (1984) 3 BPR 9500 at 9503, Rogers J held that it may be inferred that a document that purports to have been signed, sealed and delivered is in fact a deed. That presumption of delivery, may however, be rebutted by evidence the parties did not intend to be bound, which must be ascertained by considering the nature and all the circumstances of the case (see Pittmore Pty Ltd v Chan (2020) 104 NSWLR 62; [2020] NSWCA 344 at [75] per Leeming JA, Bell P and Brereton JA agreeing, quoting Lady Naas v Westminster Bank Ltd [1940] AC 366 at 399 per Lord Wright).

113. [161]

     The surrounding circumstances that Michael and Mamro say indicate that the parties did not intend to be bound include:

114. [162]

     These surrounding circumstances identified by Michael and Mamro omit other important context from the email correspondence between the parties’ respective solicitors. In Ms Alexander’s (Michael’s solicitor) email of 23 August 2018, whilst she states that she did advise Michael that signing a hand-annotated deed was “irregular and would not be accepted”, she also notes that “notwithstanding our advice, our client [Michael] signed the deed” and that “[o]ur client was anxious to sign a document last evening in order to deliver it to his mother without any further delay”. These suggest the contrary conclusion, that in fact Michael did have an intention to be bound by the 2018 Deed if and when it was signed by Maria.

115. [163]

     As to the absence of any stipulated time period within which Maria could sign the deed and the appellants’ related contention that therefore the period was infinite and indefinite, this overlooks the proposition that, absent a time stipulation, “the condition must be satisfied within a reasonable time” (see Nicholas Seddon, Seddon on Deeds (2nd ed, 2022, Federation Press) at [3.13] and Fraser v Moxham [2006] NSWSC 346 at [8] per Young CJ in Eq).

116. [164]

     In grounds 12 and 13, Michael and Mamro seek to impugn the primary judge’s finding that the 2018 Deed was delivered in escrow on the basis that Michael was a self-represented litigant in respect of whom it is said special accommodations should have been made by the Court to ensure that he understood the issue.

117. [165]

     These grounds should fail, for many of the same reasons as given above in rejecting grounds 9-11. At first instance, Maria raised the issue of whether the 2018 Deed was entered into and enforceable as between the parties. The primary judge was not raising a new issue by characterising the 2018 Deed as being “in escrow”, such that further evidence or submissions should have been made on the point, so that Michael, self-represented as he was, could appreciate the issue.

118. [166]

     There was no denial of procedural fairness. Michael and Mamro were provided a full and fair opportunity to make submissions in response to Maria’s argument that Michael executed and delivered the deed on 22 and/or 23 August 2018, such that it was capable of being executed by Maria as a binding deed on 12 October 2018. As a matter of substance, that included a full and fair opportunity to address the legal character and effect of what had occurred, including if the deed had been delivered in escrow.

119. [167]

     For completeness, I would reject any submission to the effect that the primary judge should have assisted Michael as a litigant in person by making specific reference to the escrow condition point and explaining it to him. As noted above, at the outset of the hearing, her Honour referred to the question whether the 2018 Deed was binding and enforceable in general terms as one of the key issues arising at the trial. In my respectful view, the primary judge did not need to descend into any greater detail which may have jeopardised her Honour’s neutrality and impartiality. It is one thing to assist a litigant in person by describing matters of practice and procedure (sometimes at some length) but very different considerations apply to substantive legal issues (see generally Hamod v State of New South Wales [2011] NSWCA 375 at [309]-[316] per Beazley JA, Giles and Whealy JJA agreeing; Chalik v Chalik [2025] NSWCA 136 at [65]-[72] per Bell CJ, Payne and Free JJA).

120. [168]

     Finally, although it does not strictly arise, I would also add that I do not regard [22] of Ms Tucker’s affidavit as providing probative evidence of what the appellants would have done if they had been given more information regarding the escrow condition. For convenience, that particular paragraph is as follows (without annexures):

121. [169]

     This evidence is not only on information and belief but it is speculative and leaves entirely at large the content of the additional evidence which the appellants say they would have obtained from either witnesses or on subpoena. It also left entirely uncertain what additional relevant evidence could be adduced relating to the exchange of correspondence on 23-24 August 2018.

122. [170]

     For all these reasons, grounds 9-13 are rejected.

123. [171]

     At PJ [338], the primary judge states (emphasis added):

124. [172]

     Michael and Mamro submit that “the mutual assent theorem had no application” in circumstances where they had “made the offer by the draft deed” and “it was a matter for [Maria’s] conduct to indicate acceptance of its terms”.

125. [173]

     This submission is not accepted. It is contrary to Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2015] NSWCA 1 at [60], where Sackville AJA (Macfarlan and Gleeson JJA agreeing) observed that:

126. [174]

     Michael and Mamro also contend that the primary judge erred by treating the fact that Michael was living in Maria’s house as an indication that Maria had accepted the terms of the 2018 Deed, in circumstances where Michael had lived there prior to signing the 2018 Deed. Relevant to this argument is cl 6(a) of the 2018 Deed, which provides:

127. [175]

     Referring to this clause, the primary judge observed at PJ [298] that:

128. [176]

     Also relevant are her Honour’s following remarks at PJ [279] (emphasis added):

129. [177]

     Further, as Maria pointed out, in his own evidence Michael acknowledged that Maria would “sometimes tell me [that] ‘if you don’t sign the deed, you will need to leave the house’”. The primary judge consequently did not err in finding that Michael’s residence with Maria from July 2018 to September 2021 supported the inference that they had agreed to be bound by the 2018 Deed.

130. [178]

     In any event, the fact that Maria permitted Michael to continue residing in her Haberfield property, as contemplated by cl 6, was no more than one integer that figured in the primary judge’s conclusion that the parties had manifested their mutual assent to the terms of the 2018 Deed. The primary judge did not err in so reasoning.

131. [179]

     Michael and Mamro further submitted that Maria “did not faithfully adopt the terms of the deed” in their attempt to challenge the primary judge’s finding of mutual assent. They point to cl 9 of the 2018 Deed, where Maria agreed to amend her Will to grant Michael a right of first refusal to purchase her Haberfield property upon her death. They contended that the amendments that were in fact made to her Will departed from what was contemplated by cl 9. That clause provided (emphasis added):

132. [180]

     The relevant departures complained about appear to be that the amendment to Maria’s Will provided that Michael’s right to purchase the Haberfield property would be at market value (as determined by an independent valuer) and that the right would expire after 21 days.

133. [181]

     I do not accept that these were relevant disconformities. As Maria submits, these terms were “reasonable terms” that gave effect to cl 9. No error has been demonstrated in the primary judge’s finding that Maria “complied with her obligations under the 2018 deed by … making a new will conferring on Michael a right of first refusal to purchase the Haberfield property from her estate following her death as provided for in clause 9 of the 2018 deed”: PJ [374].

134. [182]

     Even if this be wrong, the disconformities would at most be capable of establishing a breach of cl 9, rather than suggesting that the parties did not objectively consider that clause to be binding. That is so in circumstances where Maria’s solicitor communicated to Michael that the amendments to Maria’s Will were being prepared in accordance with the 2018 Deed: PJ [279].

135. [183]

     As Free JA pointed out during the course of the hearing, even if the amendments to Maria’s Will had some effect on the validity of the Will, this would have no bearing on the relevant point that the parties conducted themselves in accordance with a mutual understanding that the amendments to the Will were required by the 2018 Deed.

136. [184]

     For these reasons, grounds 14-16 are rejected.

137. [185]

     Michael and Mamro contend that the primary judge erred in refusing leave to file a notice of motion seeking, inter alia, a stay of enforcement of the costs orders made below. It is unnecessary to determine this ground. It has no utility and would not be dispositive of the appeal.

138. [186]

     Ground 5 only arises if Michael and Mamro enjoyed some success on the appeal. They have not done so, hence ground 5 falls away.

139. [187]

     It was common ground that if the appellants failed in the appeal, they should pay Maria’s costs on the indemnity basis, having regard to cl 5.1(c) of the 2018 Deed (see at [47] above).

(C) Conclusion

1. [188]

   For all these reasons, I propose the following orders:

   1. (1)

      Refuse leave for the appellants to rely upon proposed grounds 6, 7 and 8 of the amended notice of appeal dated 30 January 2026.

   2. (2)

      Grant the appellants leave to rely upon paragraphs 4-7, 20, and 22 of, and pages 88 and 95-97 of the annexures to, the affidavit affirmed by Rosemary Tucker on 22 January 2026.

   3. (3)

      Otherwise dismiss the amended notice of motion filed 14 April 2026.

   4. (4)

      Dismiss the appeal.

   5. (5)

      Dismiss the notice of motion filed 12 December 2025 insofar as it relates to proposed grounds 6, 7 and 8 of the amended notice of appeal dated 30 January 2026.

   6. (6)

      Appellants pay the respondent’s costs of and incidental to the appeal on an indemnity basis.